# Amicus Curiae Brief — First English Evangelical Lutheran Church v. County of Los Angeles

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0653%3A8

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1990
- **Citation:** 493 U.S. 1056

## Text

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—_—— = en

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

_ FIRST ENGLISH EVANGELICAL LUTHERAN CHURCH
OF GLENDALE, A CALIFORNIA CORPORATION,

Petitioner,
Ve
COUNTY OF LOS ANGELES, CALIFORNIA,
- Respondent.

On Petition For Writ Of Certiorari To The
Court Of Appeal Of California,
Second Appellate District, Division Seven

BRIEF OF AMICUS CURIAE
NATIONAL ASSOCIATION OF REALTORS®
IN SUPPORT OF PETITIONER

RALPH W. HOLMEN
430 North Michigan Avenue
Chicago, Illinois 60611
(312) 329-8375

Counsel for Amicus Curiae
NATIONAL ASSOCIATION OF REALTORS®

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

2
Aes

TABLE OF CONTENTS

PAGE
TABLE OF AUTHRORIT mr ccccccccccccccccs ii
REDROIM EE © GOR ABCD cock cscs ccccccccccs l
BIW Rees GP PARR US 6 cnc cccccccucccnccca 2
Se ee ek ce bu ea acca akc cease 3
ARGUMENT:
I.
THE COURT OF APPEAL INCORRECTLY AP-
PLIED THE “PUBLIC SAFETY EXCEPTION”
TO THE PROHIBITION AGAINST UNCOM-
PUP RE URED ng ccc cncccaceunaces 5
II.
THE COURT OF APPEAL INCORRECTLY
DETERMINED THAT NO TAKING HAD OC-
CURRED BECAUSE ALL USE OF PETI-
TIONER’S PROPERTY HAD NOT BEEN
ee oe ee ee ak eae a dae 9
III.
THIS COURT’S REVIEW IS NECESSARY TO
CLARIFY AND CONSOLIDATE THE MYRIAD
OF FORMULATIONS EMPLOYED FOR IDEN-
TIFYING COMPENSABLE TAKINGS ...... 12

bi ee vere ee eT Ie TTT eee CTT ee 15

i

TABLE OF AUTHORITIES

Cases PAGE
Agins v. City of Tiburon, 447 U.S. 255 (1980) .... 10, 13
First English Evangelical Lutheran Church v. Coun-

ty of Los Angeles, 482 U.S. 304 (1987) ...... passim

First English Evangelical Lutheran Church v. Coun-
ty of Les Angeles, 210 Cal. App. 3d 1353, 258

Oe ee ry er 2 ee passim
Goldblatt v. Hempstead, 369 U.S. 590 (1962) ... 5
Hadacheck v. Sebastian, 239 U.S. 394 (1915) ... 5
Kaiser Aetna v. United States, 333 U.S. 164

to eer eer en ae 13
Keystone Bituminous Coal Association v. DeBene-

qietie, 450 U.S. GAO CURBED 3s ccscnccnstscces 5
Loretto v. Teleprompter Manhattan CATV Corp.,

GSS UG. Gia CHRD vx ckwnkcecevi eee 14
Metromedia, Inc. v. City of San Diego, 453 U.S.

GRO GROGE) on vvcwneeks cactus 13
Mugler v. Kansas, 123 U.S. 623 (1887) ........ 5
Penn Central Transportation Co. v. New York

Cily, GB US... FOG Ca eee ssh kan eaacnnesen 13
Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922) . . 13

Constitutional Provisions
Fifth Amendment, U.S. Constitution, amend. V .. passim

Other Authorities

Falik and Shimko, The Takings Nexus: The Su-
preme Court Forges a New Direction in Land-
Use Jurisprudence, 23 Real Prop., Prob. &
ye, ee ee re ere te 10

IN THE
Supreme Court of the United States

OCTOBER TERM, 1989

FIRST ENGLISH EVANGELICAL LUTHERAN CHURCH
OF GLENDALE, A CALIFORNIA CORPORATION,

Petitioner.

COUNTY OF LOS ANGELES, CALIFORNIA,
Respondent.

On Petition For Writ Of Certiorari To The
Court Of Appeal Of California,
Second Appellate District, Division Seven

BRIEF OF AMICUS CURIAE
NATIONAL ASSOCIATION OF REALTORS"
IN SUPPORT OF PETITIONER*

IDENTITY OF AMICUS

The NATIONAL ASSOCIATION OF REALTORS®
(hereinafter ‘““NAR”) is a not-for-profit professional associa-
tion comprised of approximately 800,000 persons engaged
in all phases of the real estate business.

* All parties of record in this case have consented pursuant to
Supreme Court Rule 36.1 to the filing of this amicus curiae brief
in support of Petitioner. These consents are filed herewith.

NAR was created in 1908 to promote and encourage the
highest and best use of the land, to protect and promote
private ownership of real property and to advance pro-
fessional competence in the rendition of real estate ser-
vices.

NAR includes among its members real estate brokers,
managers, appraisers, counselors, and a variety of other
participants in the residential, commercial, industrial, farm
and investment real estate markets. Through its many
programs and the programs of its affiliated Institutes,
Societies and Councils, NAR has been involved in and
committed to the solution of the significant problems en-
countered by property owners for over three quarters of
this century.

Of the problems which have concerned NAR, few, if
any, have been more fundamental or of greater impor-
tance than the preservation of private property rights as
established by the United States Constitution. This com-
mitment to private property rights is the cornerstone of
NAR, for without such rights there would be no owner-
ship, development, transfer, or enjoyment of real estate.

INTEREST OF AMICUS

NAR’s longstanding and vigilant concern for the preser-
vation of private property rights compels its attention to
the threat presented by the decision of the court of ap-
peal in this case to property owners and property owner-
ship nationwide. At stake is the protection afforded prop-
erty owners by the Fifth and Fourteenth Amendments
to the United States Constitution against the uncompen-
sated “taking” of their property, and the corresponding

==

rights and benefits of property ownership. The decision
below, unless remedied by this Court’s review, will sub-
stantially if not entirely undermine the viability of the
protection provided by those Constitutional provisions and
this Court’s precedents interpreting them.

NAR is particularly able to recognize the gravity of this
threat. Not only does its membership span the entire na-
tion, but these members are involved in upwards of 80%
of real property resale transactions. This comprehensive
involvement at the grassroots level of land development,
investment and sale provides NAR with a clear under-
standing of the impact regulatory actions such as the one
at issue here have on the enjoyment and exercise of Con-
stitutionally protected property rights.

NAR does not propose to duplicate the legal arguments
presented in the Petition for Writ of Certiorari. The facts
in this case and its history are well-known, and NAR en-
dorses and urges to this Court the Statement of the Case
and legal arguments set forth in the Petition. The pur-
pose of NAR in submitting this brief amicus cunae is
to add the voices of the hundreds of thousands of NAR
members and the millions of American property owners
they serve to the chorus of others concerned with the
devastating effect of the decision of the court below on the
private property rights guaranteed by the Constitution.

INTRODUCTION

American property owners breathed a collective sigh of
relief when in 1987 this Court issued its’ opinion in the
first appearance of the present case before this Court,
First English Evangelical Lutheran Church v. County of

Los Ange les, 482 U.S. 304 (1987) (“First English ms '
which held that compensation must be paid for temporary
regulatory takings. That decision meant that governments
could no longer prohibit or limit the use of property with
out risk of liability for payment of compensation if such
regulation was deemed excessive and therefore a “‘tak
ing’ under the Fifth Amendment. This Court carefull)
limited that decision to the remedial question of whether
a suit for compensation must be allowed or whether a
property owner could be relegated to a suit seeking in
validation of an alleged regulatory taking, and did not ad
dress the nature of regulation which constitutes a com
pensable taking. Nevertheless, it was widely believed that
that decision would cause regulators to more conscien
tiously consider whether proposed regulatory prohibitions
on property use might constitute compensable takings, so
as to avoid them or provide compensation therefor

If the decision below is illustrative of the protection to
be afforded property owners under First English IJ and
this Court’s other precedents, then that belief was badly
misguided. The decision of the court of appeal distorts the
clear language of this Court’s opinion in First English /,
is based on the court’s speculation and hypothesis rather
than facts established at trial, and relies on an incorrect
and heretofore unrecognized test for determining when
a regulation does, in fact, constitute a taking. As a con
sequence of these flaws, the decision below provides a
graphic example of the inefficacy of this Court’s reliance
on an “ad hoc” approach to determining when regulatory
action constitutes a compensable taking, rather than a pre-
cise formula capable of producing consistent and predictable
results. More significantly, adoption by other courts of the
principles inherent in the decision below will essentially
eliminate the protection provided property owners by the
Fifth Amendment’s Just Compensation Clause.

= -

NAR urges this Court to issue the Writ of Certiorari
sought by Petitioner to rectify the injustice which the
decision below works on Petitioner, to declare that the
court of appeal has manifestly misunderstood and misap-
plied this Court’s precedents, to provide both property
owners and regulators alike a comprehensible formula for
determining regulatory takings which violate the Fifth
Amendment, and, most importantly, to restore vitality and
meaning to the Just Compensation Clause of the Fifth
Amendment.

ARGUMENT

THE COURT OF APPEAL INCORRECTLY APPLIED THE
“PUBLIC SAFETY EXCEPTION” TO THE PROHIBITION
AGAINST UNCOMPENSATED TAKINGS.

The court of appeal correctly recognized that certain
uses of property can be prohibited without the prohibi-
tion being deemed a compensable taking. Such uses are
those which are so injurious or offensive to the public
health, safety or welfare that the owner cannot be said
to have a “right” to use his property in such a noxious
fashion, and therefore prohibiting such use cannot be a
deprivation of any property right. This Court has estab-
lished that principle in such cases as Goldblatt v. Hemp-
stead, 369 U.S. 590 (1962), Hadacheck v. Sebastian, 239
U.S. 394 (1915), and Mugler v. Kansas, 123 U.S. 623
(1887), and reaffirmed its’ viability most recently in Key-
stone Bituminous Coal Assn. v. DeBenedictis, 480 U.S.
470 (1987).

Rather than applying this well-recognized principle sim-
ply to prohibit uses which are patently harmful to the

= =

public well-being, however, the court of appeal employs
it in a manner which has the effect of insulating essen-
tially any regulatory prohibition on property use from
challenge as a taking if it arguably advances any public
interest. This result follows directly from the fact that
the court’s conclusion is founded on a “record” consisting
merely of the allegations contained in Petitioner’s com-
plaint and the judicial notice which the court takes of the
challenged ordinance itself. Thus, under the court’s extra-
ordinarily deferential approach, a regulation need not even
address a genuine threat to the public weal or be carefully
devised to prevent or mitigate that harm, so long as the
regulation recites the identity of the perceived threat and
that the purpose of the regulation is to abate it.

In this case, the court accepted the validity of the flood
hazard safety concerns of Respondent county, and ac-
cepted Respondent’s view that a prohibition on building
in the area which includes Petitioner’s property was neces-
sary and would be ‘effective to shield the public from that
hazard. Because the court did not order a trial to deter-
mine the facts in this case, however, those conclusions
were not based on factual evidence offered by Respondent,
nor was Petitioner offercd the opportunity to contest those
factual conclusions. The court’s superficial approach allows
the “public safety exception” to be judged applicable in
a given case based on facts assumed by the court, rather
than those alleged and proven by the regulator.'

1 The “public safety exception” is a justification advanced by a
regulatory body in defense to a claim that a regulation or or-
dinance constitutes a taking. Thus, it should be pleaded and proven
by the regulatory body asserting that defense. A property owner
claiming that an ordinance constitutes a taking is should not be
required to specifically plead and prove the absence of such a
justification for the ordinance.

Elimination of a property owner's opportunity to chal-
lenge either the presence of a genuine public injury to
be alleviated by a regulation, or the capability or necessity
of the particular regulation to accomplish that purpose,
is, of course, grossly unfair. While NAR concurs with the
court that the preservation of life ranks at or near the
top of the public interests to be served by the police
power, even that interest should not be served at the ex-
pense of property owners’ rights to use their property
when the need for and effectiveness of limitations imposed
on those rights are factually unsupported.?

More significantly, however, this application of the “pub-
lic safety exception” to alleged regulatory takings will al-
low regulators to conveniently, uniformly and consistently
defeat all challenges to ordinances as takings, and there-
fore will eliminate the risk of their ever having to pay
just compensation for imposing a regulation which “goes
too far.” A clever regulatory body need simply identify,
when adopting an ordinance limiting the use of property,
a perceived injury to the public well-being to be deterred
or eliminated by the ordinance, and indicate that the or-
dinanee is intended to mitigate or alleviate that injury.
A court considering a subsequent challenge to that regula-
tion as a taking could, following the court of appeal’s
precedent in this case, simply accept the government's
regulatory justification, and dispense with the inconvenience
of subjecting such justification to scrutiny at trial. Such
extraordinary and blind deference to the legislative or reg-
ulatory body, particularly when all or even a substantial

2 Whether this exception — so far as to permit denial “all use”
of property to prevent a public injury, where facts adduced at trial

anly establish the spectre of such injury and the effective elimi-
nation of it by prohibiting all use of the property, is a separate
question, not raised by the posture of this case.

lies

measure of Constitutionally protected property rights are
at stake, should not be tolerated.

Perhaps the most revealing illustration of the court of
appeal’s failure to understand and apply this Court’s direc-
tion in First English I, and the corresponding failure of
the court to decide the case on facts, is the manner in
which the court takes out of context, and thus badly dis-
torts, this Court’s language in First English I. In order
to indicate the narrow scope of its holding, this Court said:

[Wle accordingly have no occasion to decide whether
the ordinance at issue actually denied (Petitioner) all
use of its property or whether the county might avoid
the conclusion that a compensable taking had occurred
by establishing that the denial of all use was insu-
lated as a part of the State’s authority to enact safety
regulations. . . . These questions, of course, remain
open for decision on the remand we direct today.

First English I, at 313 (emphasis added).

That language plainly imposes on “the county (the bur-
den to) avoid the conclusion that a compensable taking
had occurred by establishing” the applicability of this pub-
lic safety exception. Because the court of appeal did not
require the county to carry this burden at trial, however,
the court considers these questions without the benefit
of any factual foundation. The court justified its conclu-
sion by manipulating the above-quoted language to appear
as if it were this Court’s affirmative statement:

In the words of Chief Justice Rehnquist, the or-
dinance did not ‘actually [deny] (Petitioner) all use
of its property’ and in any event ‘the denial of all
use was insulated as a part of the State’s authority
to enact safety regulations.

First English Evangelical Lutheran Church v. County of
Los Angeles, 210 Cal. App. 3d 1353, 258 Cal. Rptr. 893,
905-06 (1989).

=

Unless condemned by this Court on review, other courts
will similarly be tempted, or perhaps even encouraged,
to apply a similar per se rule to other legislative or
regulatory limitations on the use of property, thereby al-
lowing regulators to sidestep the claim that such limita-
tions are prohibited uncompensated takings of property by
asserting the State’s authority to enact safety regulations.
This Court should grant the Writ sought by Petitioner
to declare such that no such per se rule applies, and to
confirm that owners of property affected by such limita-
tions must have the opportunity to demonstrate that the
purported menace to public safety is not genuine, or that
the limitation or prohibition on property use is ill-suited
to prevent that harm.

II.

THE COURT OF APPEAL INCORRECTLY DETER-
MINED THAT NO TAKING HAD OCCURRED BECAUSE
ALL USE OF PETITIONER’S PROPERTY HAD NOT
BEEN DENIED.

As an independent basis for rejecting Petitioner’s claim
for compensation for the taking of its property by Interim
Ordinance 11,855, the court of appeal concluded that Peti-
tioner had not been denied ‘‘all use” of the property. In
doing so, the court of appeal makes two fundamental er-
rors which require this Court’s review and correction.

First, the court incorrectly asserts that no taking has
occurred and thus no compensation is necessary because
Petitioner was not denied “all use” of its property. This
Court has never held that denial of all use is the proper
test of whether a regulation constitutes a taking. Signifi-
cantly, the court relies on a law review article, rather
than any decision of this Court (or any other court), for
its novel and unprecedented view of what constitutes a

=

taking.* For this reason alone the court’s decision is plain-
ly flawed and this Court should grant the Writ to cor-
rect it.

Second, even assuming that the court’s “denial of all
use” test for a taking was correct, the court’s analysis of
that factual question suffers from the same critical defect
as its application of the “‘public safety exception.’”’ The
court denies Petitioner the chance to establish at trial
facts demonstrating that the property is not, in fact, suit-
able for the other uses which the court postulates, or any
others. Rather, the court substitutes its own speculation
regarding other uses of the property which might be en-
joyed by Petitioner, and concludes that the hypothetical
availability of such other uses is adequate to defeat Peti-
tioner’s claim that the property has been taken.

It is, for example, conceivable, and perhaps even like-
ly, that the remaining permissible uses which the court
envisions (“many camping activities . . . meals could be
cooked, games played, lessons given, tents pitched... ,”
210 Cal. App. 3d ____, 258 Cal. Rptr. at 902) are no longer

3 Falik and Shimko, The Takings Nexus: The Supreme Court
Forges a New Direction in Land-Use Jurisprudence, 23 Real
Prop., Prob. &-Trust L.J. 1 (1988). Further evidencing the court’s
misplaced reliance on this authority, the article itself relies on
Agins v. City of Tiburon, 447 U.S. 255 (1980), simply for the
familiar proposition that to be a taking a regulation must only
“‘den(y) an owner economically viable use of his land,” /d., at 4,
rather than concluding that “all use’”’ of the property must be
denied, as the court below asserts. Indeed, the article relied on
by the court expressly rejects the interpretation the court derives
from it: “(T]o adopt the standard that all use of property must
be eliminated for a regulation to be regarded as invalid, the court
would need to ignere-years of-jurisprudence indicating that a tak-
ing can be found if a property owner was denied all reasonable,
economically viable use of its property.” Jd., at 43 (emphasis in
original).

_

feasible because of the condition of the property after the
flood. Surely conclusions regarding permissible uses of the
property which genuinely remain are conclusions of fact
which require trial to determine.

To be sure, the court’s conclusion—that the property
may still be used in the manner described and that such
uses are likely to be valuable and beneficial to Peti-
tioner—has a certain logical appeal. But such logic must be
supported by facts, which must be developed at trial and
examined in the specific context of the nature of the prop-
erty, the property owner and the particular uses still per-
mitted, rather than on the musings of the court. This
Court’s review and rejection of the conjectural analysis
of the court of appeal is therefore necessary if owners
of property are to enjoy any meaningful protection under
the Fifth Amendment’s Just Compensation Clause. If in-
deed courts may conclude that deprivation of an owner’s
right to use his property in certain ways does not con-
stitute a taking because the court itself can imagine some
other uses for the property, then the Fifth Amendment’s
prohibition against uncompensated regulatory takings, as
construed by First English I and this Court’s other prece-
dents, is truly emasculated.

4 The court even suggests that the utility of particular permissi-
ble uses of the property are to be considered in light of the nature
and identity of the property owner when it notes that “(Df (the
property) had been a factory or a coal mine, these sorts of (out-
door recreational) uses would have meant little to the landowner.
But (the property) is a camping facility. So uses of value to that
purpose remained available. . . .”’ 210 Cal. App. 3rd at ___., 258
Cal. Rptr. at 902. If it is indeed proper to determine the nature
and viability of any remaining permissible uses of a regulated prop-
erty based on the value of those uses to the particular owner,
that question is quite obviously one of fact, and thus not appropri-
ate for an appellate court to decide, as did the court here.

ee

The court of appeal and other courts tempted to follow
that court’s lead must be instructed that a regulatory
scheme need not deny “all use” of a property to constitute
a taking and that this Court has never so held, and that
judicial speculation regarding the existence and value of
uses theoretically remaining available to a property owner
may not be used in place of facts placed in evidence. To
insure that the Fifth Amendment’s guarantees have con-
tinuing vitality for property owners, this Court should
issue the Writ sought by Petitioner.

Il.

THIS COURT’S REVIEW IS NECESSARY TO CLARIFY
AND CONSOLIDATE THE MYRIAD OF FORMULATIONS
EMPLOYED FOR IDENTIFYING COMPENSABLE TAK-
INGS.

The errors of the court of appeal described above, as
well as those articulated in the Petition itself, without
more, demonstrate the critical necessity for this Court to
issue the Writ sought by Petitioner. The mere existence
of these defects in the court of appeal’s analysis, as well
as the extensive scholarship addressing “takings” jurispru-
dence®, suggest a more fundamental problem: The criteria
which this Court as well as lower courts have heretofore
used to determine if a compensable taking has occurred
are simply inadequate for that purpose. Such multiple
criteria permit courts to reach inconsistent and unpre-
dictable results, which is hardly what one expects, or what
American property owners deserve and require, from a
principle of Constitutional law. This Court’s attention to

5 See, e.g., the opinion of the court of appeal below, n.7, 210 Cal.
App. 3d ___, 258 Cal. Rptr. at 897, and the list of publications
identified in the Petition itself, pp. xii-xv.

=—

this problem is therefore necessary to bring order to the
manner in which courts henceforth resolve this critical
Constitutional question.

It is often noted, for example, that this Court has ac-
knowledged that “(T]he question of what constitutes a
‘taking’ for Fifth Amendment purposes has proved to be
a problem of considerable difficulty . . . . (for which no)
‘set formula’ ”’ has been developed, Penn Central Trans-
portation Co. v. New York City, 488 U.S. 104, 123-24
(1978), and a question which can only be resolved by en-
gaging in ‘‘ad hoc, factual inquiries” in each case, Kaiser
Aetna v. United States, 444 U.S. 164, 175 (1979). Indeed,
this confusing state of affairs is reminiscent of the Chief
Justice’s characterization of this Court’s First Amendment
decisions applicable to billboard regulation as ‘‘a virtual
Tower of Babel, from which no definitive principles can
be clearly drawn.”’ Metromedia, Inc. v. City of San Diego,
453 U.S. 490, 569 (1981) (Rehnquist, J., dissenting).

A variety of tests have heretefore been applied by this
Court to the takings question, including, for example, the
following:

1. Whether the ordinance denies the owner the op-
portunity to pursue any “economically viable use,”
Agins v. City of Tiburon, 447 U.S. at 260;

2. Whether the ordinance precludes or interferes
with the owner’s “‘reasonable, investment-backed
expectations,” Penn Central, 438 U.S. at 124;

3. Whether the ordinance fails to advance legitimate
state interests, Agins, 447 U.S. at 260;

4. Whether the ordinance denies the owner the op-
portunity to “secure an average reciprocity of ad-
vantage’, Pennsylvania Coal v. Mahon, 260 U.S.
398, 415 (1922);

=)

5. Whether the ordinance results in a physical oc-
cupation of the property, Loretto v. Telepromp-
ter Manhattan CATV Corp., 458 U.S. 411, 483
(1982);

Whether the ordinance destroys a “major portion”
of the property’s value, First English I, 482 U.S.
at 329 (Stevens, J., dissenting).

D>

There is also the ‘either/or’ test applied by the court
below in this case, that is, whether the ordinance fails
to “substantially advance a legitimate public purpose or
deprives the landowner of ‘all use’ of the property,” 210
Cal. App. 3d , 258 Cal. Rptr. at 901, although as dis-
cussed above, supra, pp. 9-10, the latter prong of that
test is supported by neither this Court’s precedents or
even the authority which the court itself relies on.

Of course, each of these tests is not wholly distinct from
the others, and a particular ordinance may reasonably be
judged to be (or not to be) a taking under more than one.
Nevertheless, because the tests are not congruent, the
result in a particular case often will depend on the test(s)
selected. That this Court has found it necessary or desir-
able to articulate such a multiplicity of tests, however,
reveals that any one of these tests is incapable of pro-
ducing a satisfactory and proper result in all cases. NAR
therefore urges this Court to issue the Writ of Certiorari
sought by Petitioner in order to undertake a renewed ef-
fort to develop a coherent and uniformly applicable for-
mula for determining when a regulation is a “taking,”
despite the obvious and considerable difficulty which this
Court has previously encountered in doing so. Even a con-
solidation of this plethora of approaches to the identifica-
tion of regulatory takings, without achievement of the op-
timal objective of developing a single, comprehensible test,

=

would be of extraordinary value to both property owners
and governmental bodies charged with the authority or
duty to regulate the use of property. Regulators will bene-
fit by being better able to avoid the unintentional adop-
tion of ordinances which constitute takings, and thus to
avoid the obligation to pay compensation to owners of
properties taken by such ordinances. Property owners will
benefit by gaining a better understanding of the types
of ordinances which can reasonably be challenged as tak-
ings, and those which cannot. And finally, both owners
and regulators will benefit from a diminished need to
litigate the question of whether a particular ordinance con-
stitutes a “taking,” since they will be able to more re-
liably determine in advance the probable result of such
litigation. Thus, perhaps the “great deal of litigation”
feared by Justice Stevens as a result of First English I,
482 U.S. at 322, can be avoided.

CONCLUSION

The decision of the court of appeal utterly fails to grasp
the meaning of this Court’s holding in First English I
and other cases involving regulatory takings. In light of
the significance and the renown of First English I, how-
ever, the holding of the court below undoubtedly is and
will continue to be regarded by other courts as an im-
portant statement about the meaning of the Just Compen-
sation Clause as applied to regulatory takings. Thus, the
fundamental flaws contained in that decision will, unless
this Court acts, be multiplied manyfold. American proper-

—

—16—

ty owners cannot and should not be required to tolerate
the appropriation of their rights which will result.

For the foregoing reasons, NAR urges this Court to
grant Petitioner’s Writ of Certiorari.

Respectfully submitted,

RALPH W. HOLMEN
430 North Michigan Avenue
Chicago, Illinois 60611
(312) 329-8375
Counsel for Amicus Curae
NATIONAL ASSOCIATION OF REALTORS"

December 22, 1989

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